Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

31 July 2008

Pity the Poor Farmers

This entry may be a bit heavy going, as it largely concerns theoretical issues that may seem of dubious application to writers' interests. Trust me, though: It will all seem more important by the time you slog through it.

First up is an antitrust case on mergers between organic food chains. Wait a moment before groaning  once we get there, I think its importance will be crystal clear. In any event, this involves the now-completed merger of Whole Foods and Wild Oats. The US Court of Appeals for the DC Circuit ruled on Tuesday(PDF, 150kb) that the FTC's objections to the merger  which did not succeed in derailing it  required further analysis than that given by the trial court. The critical part of the holding is that

... the district court believed the antitrust laws are addressed only to marginal consumers. This was an error of law, because in some situations core consumers, demanding exclusively a particular product or package of products, distinguish a submarket. The FTC described the core PNOS customers, explained how PNOS cater to these customers, and showed these customers provided the bulk of PNOSs business. The FTC put forward economic evidencewhich the district court ignoredshowing directly how PNOS discriminate on price between their core and marginal customers, thus treating the former as a distinct market. Therefore, we cannot agree with the district court that the FTC would never be able to prove a PNOS submarket.

FTC v. Whole Foods Market, Inc. (D.C. Cir. 29 Jul 2008), slip op. at 20. This is fairly dense reading, even for those who have some understanding of antitrust law. What it really means, though, is that domination over discrete subsegments of a market is enough to trigger antitrust inquiry. For example, at present there are only a handful of commercial publishers who publish new book-length works of speculative fiction ordinarily stocked in a chain bookstore. That subsegment is the proper measure of the market... not the entire universe of publishers. Thus, the most-recent set of publishing acquisitions should have gotten much more searching antitrust scrutiny due to its effect on this discrete subsegment than it did. And one can  indeed must  make the same inquiry in any other consolidation in the entertainment/publishing industry.

Then there's the WTO. Yesterday, the current seven-year-long round of WTO negotiations collapsed. Of course, that article does not tell much of (let alone the whole foods) story, even from a purely American perspective... and it does matter to authors and other creators of copyrightable works. One of the conditions that the US delegation was pushing was mandating a DMCA-like system  both the "notice and takedown" aspect in § 512 and the anticircumvention aspect in chapter 12  as part of any revision whatsoever to current trade agreements. However, you won't find any mention of that in the NYT article linked above, and precious little acknowledgement in other sources, which almost uniformly focus on the straw that broke the camel's back (or at least required a cameloid vertebral laminectomy). This is actually much uglier than it sounds, as the one remaining untapped market for Western entertainment is the undeveloped countries. Consider, for example, that the single largest English-speaking/reading population in the world is in... India, which is the nation accused by those in the West of killing this round of talks.

Putting these two seemingly unconnected items together can be even more disturbing. Admittedly, it's quite esoteric and theoretical; that, however, is where the unexpected consequences begin. Both the antitrust market-definition issue in Whole Foods and the WTO's inability to agree on a time (and price) for lunch reflect a disturbing inability to evade the gravitational effect of power: A nexus of power attracts more power in the same way that a large astronomical body (like, say, Jupiter) attracts more moons. And that is nothing that should attract praise from anyone... not even hardcore advocates of laissez faire economic policies. Diseconomies of scale must be considered, too.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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